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VIEWPOINT;TV NETS ASK FOR TOO MUCH;FORCED SPEECH

Published on June 10, 1996.

The big broadcast tv networks are lobbying the Federal Communications Commission for more rule changes to help their bottom lines. But the latest two ideas, which reportedly have the backing of FCC Chairman Reed Hundt, should be rejected by the full commission.

The proposals would (a) limit network affiliates' rights to preempt network programming, and (b) permit the networks to also serve as national spot sales reps for their affiliates. The first would strengthen the networks but curb a station's ability to control what programs it airs (and it is the station, as the FCC licensee, that is legally accountable for programming decisions). The second would permit the networks to control a bigger chunk of national spot TV sales (they already sell spot for their owned stations), adding to their power in the TV ad sales marketplace.

If, as proposed, stations can preempt network shows only for programs deemed in the public interest, such as news or public affairs, a station in a conservative community would have difficulty preempting an "NYPD Even Bluer" even if it felt its viewers would object. What does the FCC license mean if not the duty to serve your market?

Before permitting networks to serve as affiliate spot sales reps, more study is needed. Should they be allowed free rein to seek to rep independently owned stations with whom they compete for ad dollars? Would affiliates who didn't sign on get less promotional support? Would advertisers and agencies lose if the services and negotiations from independent reps are diminished? These and other questions need more airing before such a fundamental change in the multibillion-dollar TV industry is considered.

Next up for the Supreme Court: The justices now will ponder the First Amendment from a new direction. Having forcefully denounced unwarranted government action to forbid advertising, they have opted to consider if the First Amendment bars the government from forcing an unwilling business to advertise.

The High Court in its next term will hear complaints from a California fruit shipper that is re-quired-against its will-to help finance a generic commodity advertising and promotion program sanctioned by the U.S. Agriculture Department for peaches, plums and nectarines.

The First Amendment issues are not simple. Nor are the issues of fairness and equity. Two federal appeals courts have already reached opposite conclusions: One upheld a beef promotion program while the other found the California Tree Fruit program (the case the Supreme Court will review) to violate the First Amendment.

These are admittedly broadly popular programs among growers (it takes a majority vote among grower/shippers to approve any assessment to finance a promotion effort). But we doubt this court can let these programs stand without some mechanism to let businesses opt out if they prefer brand promotion to generic commercial speech.

Yes, generic promotion presumably benefits all growers, and why should any grower benefit from it without helping to pay for it? But if this were any other business than agriculture, with its long history of government involvement in markets, the idea of the government compelling all industry members to generically promote their wares would seem bizarre. Moreover, how the court handles this case may have implications outside of agribusiness. Can the government require tobacco marketers, for example, to fund anti-smoking messages?